Eli Lilly and Co. v Government of Canada: Latest Developments

I mentioned Eli Lilly's claim against Canada for compensation under art 1110 of the North American Free Trade Agreement ("NAFTA") in Bilateral Investment Treaties: Claiming Compensation from Foreign Governments under Bilateral Investment Treaties for failing to provide adequate IP Protection 27 July 2013 and Bilateral Investment Treaties: Eli Lilly and Co. v Government of Canada 2 Jan 2014 as well as my article "Bilateral Investment Treaties: A Remedy for SME?" which was published in Issue 12 of Volume 35 of the European Intellectual Property Review on page 759.

Following Eli Lilly's Notice of Arbitration which I mentioned in January the parties appointed Professor Albert Jan van den Berg, Mr Gary Born and Sir Daniel Bethlehem KCMG, QC as arbitrators. Eli Lilly designated its Notice of Arbitration as its statement of claim by a letter from its lawyers dated 14 May 2014. The arbitrators have made a procedural order dated 26 May 2014

  • designating the International Centre for the Settlement of Investment Disputes as the administering authority;
  • Washington DC as the seat of the arbitration;
  • applying the UNCITRAL Arbitration Rules except as modified by NAFTA;
  • proceeding in English;
  • providing for liability and damages to be determined separately; and
  • setting out a timetable for disclosure, exchange of evidence and final hearing which should take place 2016.
The Canadian government filed a defence on 30 July 2016 denying breach of any international obligation under NAFTA or otherwise. Eli Lilly served its memorial (lengthy written submissions) on 29 July 2014.
I will advise you what happens.


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